Relevant stakeholders become more easily identifiable as persons
immediately involved or connected with a criminal offence. This does not require all such persons to partici- pate, but rather that opportunities exist for persons beyond the victim and offender to take part. Similarly, there must be opportunities for members of the general public to take part. This working idea of a conference setting is without any specific recommendation on capping the number of persons included, although groups of 10 or more may prove impractical.
The key idea is that if restoration is worth achieving, then it should not be a private affair between only the victim and offender: crimes are public wrongs that affect all members of the community, including the support networks of victims and offenders whose voices are regularly left out.38 These individuals have a stake in the outcome that should not be silenced. Restorative conferencing demonstrates this model is achievable and successful: participant satisfac- tion is higher in this setting than in mediation.39 We should take the idea of stakeholding central to restorative justice approaches more seriously and ensure that any restoration of offenders with their community is enabled through including the com- munity—as this is too often not the case.
So one benefit of punitive restor- ation is its specifying of the restorative process. Restoration is aimed at stake- holders through a conference setting. Furthermore, we should recall that our focus is on alternatives to senten- cing: punitive restoration is conceived as an alternative to the formal procedures of the criminal trial and sentencing guidelines. Punitive res- toration can then overcome an impor- tant obstacle—the diversity of
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restorative approaches. It can do this because our speaking of “punitive restoration” is linked with a particu- lar, informal use of restorative justice. We can then better compare the dynamics and outcomes of puni- tive restoration given the more speci- fied content. When referring to “punitive restoration,” we know which restorative practice we are talking about.
Another benefit is that punitive restoration can better address the issue of community than alternative restorative approaches, because puni- tive restoration endorses the principle of stakeholding, which holds that those who have a stake should have a say.40 There is no need to consider the more difficult task of discerning which type of community is most rel- evant for restoration, and one can focus on identifying the primary sta- keholders and engaging them instead.
It should be noted that orthodox restorative justice approaches typi- cally require both victims and offen- ders to participate. An additional benefit of punitive restoration over these approaches is that only punitive restoration can address situations of so-called “victimless” crimes, or cases where a victim is either unable or unwilling to participate. Those offences most often considered “vic- timless,” such as possession of illegal drugs, might normally be unavailable to a restorative approach and the potential benefits it can offer. While there may be no specific victim, crimes are public wrongs, and the public has a stake in how criminal offences are managed, no matter their degree of seriousness. Punitive restoration’s principle of stakeholding better helps us identify persons to participate in conference meetings and expand their applicability to a
wider range of offences than alterna- tive restorative approaches.
The public’s having a say on penal outcomes is subject to several safe- guards as found in current restorative justice practices that punitive restor- ation builds upon.41 Offenders have a right to legal representation throughout. Participation by every- one from offender to victim and com- munity members is voluntary. The public can contribute already to penal outcomes through serving on a jury or submitting a victim impact statement, so having a voice on sen- tencing is not unknown.42 Flexibility is constrained by national guidelines providing necessary discretion, but all outcomes must be overseen by a trained facilitator and agreed to by the offender to be confirmed.43
Further problems for restorative justice approaches concern their limited applicability to less serious offences, the limited confidence the public may have in restorative approaches because they may be viewed as too soft an option, and their limited available options due to the exclusion of any use of hard treat- ment. Punitive restoration takes these obstacles together. It enables wider applicability by increasing the kind and range of available options. Punitive restoration does not assume that restoration must never require the use of hard treatment. While incarceration may often make suc- cessful crime reduction efforts more difficult, it is also clear that prisons can, and should, be transformed to improve incarceration’s disappointing results.44
For example, restorative contracts regularly include an obligation for offenders to undertake treatment for any drug or alcohol abuse and to par- ticipate in programs designed to
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develop their employability and life skills.45 There is no reason to accept that these activities could never be delivered successfully within a prison or some other secure facility for particular offenders. Perhaps hard treatment should be used spar- ingly because its use can be counter- productive: this is still not grounds for avoiding custodial sentences altogether. It is a realistic possibility that prisons may prove the best environment for some offenders in specific cases.46 Prisons might also be reorganized so that prison officers could become personal support offi- cers if provided with suitable training. Such a reform would make better use of prison resources: these officers have most frequent contact with imprisoned offenders and this relationship could be harnessed to produce an improved system of pas- toral support.47
Prisons can and should be trans- formed so incarceration does not undermine offender rehabilitation. Short-term imprisonment is associ- ated with high rates of reoffending. This is a significant problem because, as the Ministry of Justice notes on its website as of June 2017, most offen- ders receive short-term sentences of less than 12 months and about 60% will reoffend within weeks of their release. Most offenders receiving short-term imprisonment do not receive any rehabilitative treatment. This is a major contributing factor to the likelihood these offenders will reoffend when released from prison.
This problem may be overcome through providing effective treat- ment. Brief intensive interventions have been employed to address pro- blems associated with drugs, and offenders were found to benefit from “significant gains in
knowledge, attitudes and psychoso- cial functioning.”48 These sessions were corrections-based treatment of moderate (30 outpatient group ses- sions 3 days per week) or high inten- sity (6-month residential treatment) and they have been found to yield cost savings of 1.8 to 5.7 times the cost of their implementation.49
These policies suggest prisons can be reformed to better support offen- der rehabilitation and improve post- release crime reduction efforts without sacrificing cost-effectiveness.
Reforms like these have important relevance for punitive restoration, because offenders who have com- mitted more serious, even violent, crimes may require more punitive outcomes than are currently available to restorative justice approaches. For example, in England and Wales, the currently available restorative prac- tices reject all uses of hard treatment, including the imposition or its threat in contracts agreed on at restorative meetings. If these contracts are not agreed to or satisfied in full, the offen- der’s case may be transferred for con- sideration by a magistrate where hard treatment can become a possible outcome. Despite having admitted guilt in a restorative setting and having apologized to the victim, the offender is permitted to plead not guilty, while his or her failure to honor a restorative contract cannot be raised at trial. This current practice fails to fully respect the integrity of the restorative process, as neither apologies nor promises are supported by any available sanction.
Punitive restoration might permit the inclusion of a suspended sentence for non-compliance within the con- tractual agreement—this would be made clear to offenders up front.50
This option would extend the
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flexibility of punitive restoration to more varieties of offence types and offenders, bypassing the need for a trial in cases of non-compliance and further reducing potential sentencing costs. Nor should this flexibility be problematic: offenders receiving a suspended sentence in a punitive res- toration conference meeting would retain access to legal representation throughout, must confirm any guilt without coercion, and agree to all terms presented to them at the con- clusion of this meeting for committing offences where the alternative— through the traditional formal pro- cedures of the courtroom—would include options that are at least as punitive. Note that one major differ- ence is that only with punitive restor- ation would the possibility of hard treatment be an issue that must be agreed to by the offender prior to its use.
Let us consider two further instances where punitive restoration might justify some form of hard treat- ment. One is the idea of prison as a form of cooling off. Recall that imprisonment is often not the begin- ning of an offender’s socio-economic and legal difficulties, but rather their confirmation after an extended escala- tion. Imprisonment is characteristi- cally disruptive. A consequence is that it can end already fragile support networks and render an indi- vidual’s road to sustainable prosper- ity tenuous. This is a significant problem for most offenders—but not for all. Perhaps for only a small, yet important, minority the disruption of strongly negative support networks or difficult personal circumstances can provide an opportunity for offen- ders to take a break where they might become open to personal transform- ation possible only in a prison-like
environment. And this possibility could be readily knowable, as offen- ders are assessed by probation offi- cers prior to any sentencing decision, anyway, to ensure any allocated prison place is suitable for any offen- der to be considered for hard treatment.51
A second form of hard treatment that punitive restoration might incor- porate is the idea of less time in prison with more intensity. This addresses the fact that most offenders serve short-term sentences without receiving any rehabilitative treatment. These treatments are costly and so prison wardens normally reserve expensive rehabilitative programs for offenders serving more than one year in prison: this permits sufficient time for these programs to be effective.
However, these programs are rarely intensive and—as already noted above—such high-intensity programs have been found to be effec- tive at reducing drug and alcohol abuse, for example.52 More such pro- grams would increase costs, but these might be accounted for by redu- cing the overall time spent in prison made possible by intensive rehabilita- tion programs: the savings from the reduced time spent in prison overall could contribute to the increased costs of ensuring that all inmates have access to the appropriate inten- sive rehabilitative programs. Further savings might accrue through less reoffending on release if the programs are successful.
Punitive restoration might be objected to on the grounds that hard treatment, even for a few days, is a major curtailment of individual liberty that requires special safe- guards only the formal procedures of the courtroom could satisfy. The
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problem with this objection is that only a relatively few cases are brought to trial.53 Thus, the vast majority of cases are never heard in court and so victims and others affected by a crime are not given opportunities to gain a better under- standing of why crimes occurred or to receive an apology from their offen- ders. It is hardly surprising to recall the widespread dissatisfaction many victims have with the traditional sen- tencing model. Punitive restoration is a concrete approach that can over- come this problem by providing greater opportunities for restorative meetings where victims express much higher satisfaction.54
Restoration might not be for everybody. Restorative justice—as an alternative to traditional sentencing —is typically only available to offen- ders with little to no past criminal record. Punitive restoration attempts to create a space whereby more offen- ders can be brought into a restorative approach. While more punitive options can enable restoration and expand potential applicability, it is not argued here that punitive restor- ation is appropriate for all crimes, including the most serious violent offences. If it were used, it might undermine its goal of winning over public confidence. Social reality matters, and punitive restoration must restore—strong public opposi- tion to its use could damage its ability to provide some form of restoration.